Dickinson v. Hathaway

• Decision Date: 04 January 1909
• Docket Number: 17,188
• Citation: 122 La. 644,48 So. 136
• Court: Louisiana Supreme Court
• Parties: DICKINSON v. HATHAWAY

48 So. 136

122 La. 644

DICKINSON v. HATHAWAY

No. 17,188

Supreme Court of Louisiana

January 4, 1909

Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Edmund Dennis Miller, Judge.

Action by M. M. Dickinson, Jr., against George Hathaway. Judgment for defendant, and plaintiff appeals. Affirmed.

Mitchell & Rosenthal, for appellant.

McCoy Moss & Knox, for appellee.

OPINION

BREAUX C.J.

Facts and Pleadings.

The plaintiff sued the defendant for $ 5,000 damages. Libel against him by the defendant is the ground of the action.

The petition having been dismissed on an exception of "no right and no cause of action," we have made a summary of the allegations, as the facts alleged in the petition are admitted as true.

Plaintiff avers that he was the rice grader and warehouseman of the Lake Arthur Rice Milling Company, Limited, of which George Conovora is president, and George Hathaway manager.

For the year he was to receive for his services $ 1,200.

He complains of his discharge by the manager on the 30th day of March, 1907, five months before the expiration of the year for which he was employed.

When he was discharged he was paid the sum of $ 700.

He claims $ 500 for the remainder of the year, dating from the day he was discharged. He avers that he was discharged without cause.

He placed his claim in the hands of Mitchel & Young, attorneys.

They wrote a demand to the company for the amount.

George Hathaway, manager, answered in a letter in which he stated that the company positively refused to pay plaintiff the amount, as it had overpaid him. The manager added that plaintiff was incompetent, and on that account the company incurred losses. That the company would have no trouble in proving by all of its employes that he was incompetent, and that it would also prove that he was found incompetent in other ricemills; and he suggested that if the attorneys would make inquiry they would find that it was not his first discharge. He further stated that there were other good defenses that would not be to their client's credit; that the company did not think that the attorneys would bring suit if they knew the facts within the knowledge of the employes.

This letter was signed the "Lake Arthur Rice Milling Company, Limited," by George Hathaway.

Copy of the letter was inserted in plaintiff's petition. The petition amplifies the text of the letter, with comments such as that there was no cause and no ground for writing the letter; that it was false, scandalous, and malicious, defamatory of his plaintiff's good name and reputation to thus charge him with incompetency and dishonesty and that he was unreliable and untrustworthy of the confidence of his fellowmen.

As the case will be disposed of on the exception, we have not found it necessary to take note of the grounds set up in the answer. The answer was filed with full reservation of the grounds of exception. The letter from which we have quoted above is the only evidence upon which plaintiff relies; he has no other.

Discussion and Judgment.

At the outset of the discussion, a definition is in place:

Any person who publishes a defamatory letter concerning another, so as to bring him into contempt, ridicule, or hatred is guilty of libel.

It becomes necessary to determine whether the letter addressed to and received by the person defamed is a publication.

Such a letter will not in the ordinary course be held actionable in a civil suit for damages. It might be different in a criminal proceeding, in which the purpose is to prevent a breach of the peace. This being a civil suit, we are not concerned with decisions in other jurisdictions in criminal proceedings for libel.

A libel, to be actionable, must be published to some third person or the agent of that third person. An answer to a plaintiff or his agent is privileged if the answer does not extend further than the plaintiff's question. 25 Cyc. 392.

For illustration: If a letter were dropped by the writer on a sterile moor and was found by the person traduced, it would not be actionable. But it would be actionable if it were found by an agent of the same person not connected with or in any way concerned with this letter. But if it were to be found by an agent who had in some way brought on the answer, it would be privileged.

The publication vel non of the asserted libel is another ground of controversy. The argument of the plaintiff on the subject finds no support in the facts which we have already anticipated. The argument is based on the idea that the letter was dictated to a stenographer, who retained a copy.

The petition avers that the letter was written by the defendant and mailed to plaintiff's attorneys.

The parties must be held to their pleadings. A contrary state of facts will not be assumed. Therefore, as relates to the publication of the alleged libel, there was nothing of the kind as relates to the contents of the letter. It was not shown that any one read it.

We pass to the next proposition; that is, that the attorneys who received the letter were the agents of plaintiff, and in sending it to them there was no publication.

The plaintiff left the writing of this letter to these attorneys. The defendant could not do less than answer this letter. Their writing to the defendant was really the act of ...